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Earl v. Norfolk State University

United States District Court, E.D. Virginia, Norfolk Division

March 17, 2016

DR. ARCHIE EARL, et al., Plaintiffs,
v.
NORFOLK STATE UNIVERSITY, et al., Defendants.

OPINION AND ORDER

MARK S. DAVIS UNITED STATES DISTRICT JUDGE

This matter is before the Court on a motion for summary judgment filed collectively by Norfolk State University ("NSU"), Dr. Tony Atwater-former President of NSU, the Board of Visitors of Norfolk State University, and the Commonwealth of Virginia (collectively, "Defendants"). ECF Nos. 75, 76. Counsel for lead Plaintiff, Dr. Archie Earl ("Dr. Earl"), who also represents the six additional named plaintiffs in this case (collectively, "Plaintiffs"), filed a joint response opposing summary judgment. ECF No. 85. Defendants thereafter filed a timely reply brief.[1] ECF No. 86.

I. FACTUAL AND PROCEDURAL HISTORY

The factual and procedural history of the instant action are well-documented, and the Court incorporates herein the background set forth in prior Orders in this case. ECF Nos. 21, 33, and 42. In sum, lead plaintiff Dr. Earl, a long-time associate professor at NSU, filed the instant action asserting that Earl and other male professors were discriminated against based on their race, sex, and age. Earl further alleged retaliation against him based on his efforts to lead the fight against salary inequities at NSU. Pursuant to this Court's Opinion and Order dated June 26, 2014, the only claim in Plaintiffs' second amended complaint that survived the Defendants' motion to dismiss was the Equal Pay Act ("EPA") claim, alleging that Earl, and other male professors, were paid unequal wages for performing substantially the same jobs, under similar working conditions, as female professors. ECF No. 33.

The Court thereafter granted, in part, Dr. Earl's motion for conditional class certification, ECF No. 42, and ten additional male plaintiff professors opted into the class. ECF Nos. 57, 59. Pursuant to a consent order of dismissal dated February 5, 2016, three named plaintiffs were dismissed from the action. ECF No. 70. A second consent order of dismissal was granted approximately one week later, and an additional named plaintiff was dismissed. ECF No. 71. The remaining seven plaintiff professors are part of four different departments at NSU: (1) the Mathematics Department-Dr. Archie Earl, Dr. Boyd Coan and Dr. Curtiss Wall; (2) the Technology Department-Dr. Walter T. Golembiewski and Dr. Chijioke Akamiro; (3) the Political Science Department-Dr. Aberra Meshesha; and (4) the Sociology Department-Dr. William Agyei.

Defendants' summary judgment motion seeks judgment as to the claims of all seven remaining Plaintiffs. Defendants assert that each Plaintiff's claim fails either because: (1) such Plaintiff does not set forth a prima facie case as he fails to identify a valid female "comparator" that is being paid more for performing work that is "substantially equal in skill, effort, and responsibility under similar working conditions"; or (2) "even if a prima facie case were established, [Defendants] sufficiently demonstrated that the salary differential was justified by gender-neutral factors, " Strag v. Bd. of Trustees, Craven Cmty. Coll., 55 F.3d 943, 948, 950 (4th Cir. 1995). Consistent with this Court's prior ruling, ECF No. 42, at 20, the relevant "comparator" analysis is addressed herein on a department by department basis because "different departments in universities require distinctive skills, " and such fact generally forecloses "any definitive comparison for purposes of the Equal Pay Act, " Strag, 55 F.3d at 950.

II. STANDARD OF REVIEW

The Federal Rules of Civil Procedure provide that a district court "shall grant summary judgment if [a] movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) . A fact is "material" if it "might affect the outcome of the suit, " and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. A party opposing a summary judgment motion "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).

Rule 56(c) addresses the applicable procedure for pursuing, and defending against, summary judgment, explaining as follows:

(c) Procedures.

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56 (c) (emphasis added). Rule 56 further states that " [i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), " the Court has discretion to "consider the fact undisputed for purposes of the motion." Fed.R.Civ.P. 56(e).

Although the initial burden on summary judgment obviously falls on the moving party, once a movant advances evidence supporting summary judgment, the non-moving party may not rest upon the mere allegations of the pleadings, but instead must generally set forth specific facts, supported by documents, affidavits, or other record materials illustrating a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Butler v. Drive Auto. Indus, of Am., Inc., 793 F.3d 404, 408 (4th Cir. 2015) . In other words, while the movant must carry the burden to show the absence of a genuine issue of material fact, when such burden is met, it is up to the non-movant to establish the existence of such an issue. Celotex, 477 U.S. at 322-23. At that point, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. In doing so, the judge must construe the facts and all "justifiable inferences" in the light most favorable to the non-moving party, and the judge may not make credibility determinations. Id. at 255; Reyazuddin v. Montgomery Cty., 789 F.3d 407, 413 (4th Cir. 2015).

In addition to the above, this Court's Local Rules include a rule devoted to summary judgment practice, which includes a provision requiring the moving party to set forthwa specifically captioned section listing all material facts as to which the moving party contends there is no genuine issue, " as well as citations to the record to support such facts. E.D. Va. Loc. Civ. R. 56(B). The local rule further provides that a responsive brief should include a similar "specifically captioned section listing all material facts as to which it is contended that there exists a genuine issue, " as well as citations to the record. Id. The local rule expressly permits the Court to assume the truth of any facts identified by the moving party as undisputed that are not expressly controverted by the opposing party. Id.

III. DISCUSSION

Defendants have presented a summary judgment brief supported by citations to the evidentiary record including depositions, affidavits, and internal NSU business records. Plaintiffs oppose summary judgment as to four of the seven remaining Plaintiffs, but somewhat surprisingly, after complete discovery in a case that has been pending for multiple years, Plaintiffs' opposition includes no clear statement of disputed facts and very limited evidence. For the reasons discussed below, summary judgment is GRANTED in favor of Defendants as to the claims advanced by Plaintiffs Dr. Wall (Mathematics), Dr. Golembiewski and Dr. Akamiro (Technology), and Dr. Meshesha (Political Science). As to the remaining Plaintiffs, Dr. Earl and Dr. Coan (Mathemtatics), and Dr. Agyei (Sociology), viewing the evidence in a light most favorable to Plaintiffs, summary judgment is DENIED. While Defendants may have a meritorious argument either at the prima facie stage and/or the affirmative defense stage as to one or more of these three remaining Plaintiffs, based on the current record, such matters are issues properly left to the factfinder.

A. Equal Pay Act Standard

The Equal Pay Act provides as follows:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

29 U.S.C. § 206(d)(1) (first emphasis added). Interpreting and applying such statute, our court of appeals-the Fourth Circuit-has held:

[I]n order to establish a prima facie case under the Equal Pay Act, the plaintiff bears the burden of showing that []he (1) receives lower pay than a [fe]male co-employee (2) for performing work substantially equal in skill, effort, and responsibility under similar working conditions. The comparison must be made "factor by factor with the [fe]male comparator." Houck v. Virginia Polytechnic Institute, 10 F.3d 204, 206 {4th Cir. 1993). Additionally, the plaintiff must identify a particular [fe]male "comparator" for purposes of the inquiry, and may not compare h[im]self to a hypothetical or "composite" [fe]male. Id.

Strag, 55 F.3d at 948. If a plaintiff is successful in demonstrating a prima facie case, the burden shifts to his employer "to prove by a preponderance of evidence, that the pay differential is justified by the existence of one of the four statutory exceptions set forth in § 206(d)(1): (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production, or (4) a differential based on any factor other than sex." Id. (citing Houck, 10 F.3d at 207). If the employer satisfies such burden, the plaintiff's claim fails "unless the plaintiff can satisfactorily rebut the defendant's evidence." Id.

While such burden shifting scheme is in some ways similar to that applicable to Title VII discrimination claims, it differs in an important respect. Notably, for an EPA claim, a prima facie case operates to shift "[t]he burden of production and persuasion ... to the defendant 'to show, by a preponderance of the evidence, that the wage differential resulted from one of the allowable causes enumerated by the statute." Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 344 (4th Cir. 1994) (quoting Fowler v. Land Management Groupe, 978 F.2d 158, 161 (4th Cir. 1992)); see King v. Acosta Sales & Mktg., Inc., 678 F.3d 470, 474 (7th Cir. 2012) (citing Corning Glass Works v. Brennan, 417 U.S. 188, 204, (1974)). In contrast, for a Title VII claim, a prima facie case serves to shift only the burden of production to the defendant to advance a non-discriminatory justification for its acts, with "the burden of persuasion remain[ing] on the plaintiff to demonstrate that the proffered explanation is pretextual and that the defendant was actually motivated by discriminatory intent."[2]Brinkley-Obu, 36 F.3d at 344 (citation omitted). While the burden that is shifted to Defendants in an EPA case is proof by "a preponderance of the evidence, " likely because such burden is one of persuasion and not just production, it has been described by the Fourth Circuit as a "heavy" burden. Brewster v. Barnes, 788 F.2d 985, 992 (4th Cir. 1986); cf. Steger v. Gen. Elec. Co., 318 F.3d 1066, 1078 (11th Cir. 2003) ("The burden to prove these affirmative defenses is heavy and must demonstrate that the factor of sex provided no basis for the wage differential.") (internal quotation marks and citation omitted). In order to carry such burden on summary judgment, a defendant must present sufficient evidence such that "the court can conclude that had the same evidence been presented and remained uncontested at trial, [the defendant] would be entitled to a directed verdict. Brinkley v. Harbour Recreation Club, 180 F.3d 598, 614 (4th Cir. 1999) (overruled on other grounds). As indicated above, if such burden is carried, the plaintiff, of course, has the opportunity to rebut the defendant's evidence. Strag, 55 F.3d at 94 8.

B. Analysis - Technology Department

Plaintiffs Dr. Golembiewski and Dr. Akamiro both assert that they suffered salary discrimination under the Equal Pay Act and point to Dr. Eleanor Hoy as the only female "comparator" who was working in their department and paid a greater salary. Defendants' summary judgment motion asserts that Dr. Hoy does not perform substantially equal duties with substantially equal responsibilities as compared to Drs. Golembiewski and Akamiro because, unlike Plaintiffs, she is not a full-time professor at NSU. Rather, prior to 2011, Dr. Hoy was only a part time adjunct professor, and although she was appointed to a full-time position in 2011, it was not a full-time professorship, but was instead an administrative position as "Special Assistant to the Dean" and "Director of Retention" within the College of Science, Engineering and Technology. Dr. Hoy's salary was later increased when she was elevated to the university-wide administrative position of "Retention Czar." Defendants support such factual claims with ...


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